President Trump is testing limits of executive power

Last month, President Trump instructed the Treasury to postpone collection of employee federal payroll taxes until the end of the year.

An earlier suspension that expired in August had been part of the CARES Act passed by Congress in March. The president also suspended federal student loan repayments, and set the interest at zero percent, until the end of the year. This, too, had been part of the CARES Act that had expired.

The constitutional authority for these acts is very weak.

Congress had the authority to enact these provisions, had done so in March, and is still deliberating on whether to do so now. How, then, can the president simply do them on his own?

Ironically, the answer President Trump’s lawyers give is exactly the answer President Obama gave when he adopted DACA, his amnesty for the “Dreamers,” young people whose parents had brought them into the United

States contrary to our law, who had grown up here and never broken any laws themselves.

For almost four years, President Obama had refused to declare an amnesty for this group, saying it was exclusively the power of Congress to do so. For the first two years of his administration, President Obama had a Democratic majority in Congress, so he might reasonably have expected he could work out a statutory approach; but his priority was Obamacare, and nothing was done for the Dreamers.

Then Congress switched to Republican, and a legislative solution appeared more difficult. Just before the 2012 election, feeling the pressure to do something, President Obama promulgated DACA, reversing his earlier statements that it was unconstitutional for the president to usurp this power of Congress.

The parallels are almost perfect. Unhappy with the laws Congress had earlier passed but failed to amend in ways the president thought necessary, each president acted on his own. In DACA, Obama ordered the Department of Homeland Security not to enforce the existing immigration laws.

As a result, 700,000 residents of the U.S., otherwise deportable, were not deported. Obama not only failed to deport the Dreamers, he affirmatively granted them work permits and made them eligible for other benefits. Obama claimed he was simply exercising prosecutorial discretion, conserving immigration enforcement dollars and energy for much more troublesome immigrants.

In reality, he was amending the immigration laws on his own, because, having tried, he could not convince Congress to do so. In last month’s actions, Trump ordered laws governing payroll deductions and federal student loan repayments not to be enforced.

He had tried but failed to get Congress to extend its earlier law doing so.

Both Obama and Trump changed laws unilaterally by choosing not to enforce them.

When can a president simply not enforce the laws?

The Constitution requires that the president “take care that the laws be faithfully executed.” Yet it’s logical for any president to set priorities: for instance, to prosecute large-scale drug trafficking rather than mere drug possession.

The line is crossed when the very purpose of the law is undone by its non-enforcement. The Supreme Court has yet to give us an answer on this.

Last June, on procedural grounds, the court struck down Trump’s attempt to repudiate

DACA. It did not address whether Obama was within his rights to have ordered DACA in the first place. In an earlier case, the court ordered briefing on the “take care” clause, but then divided 4 to 4 (Justice Scalia had died and not yet been replaced), and so did not resolve the issue.

Eventually, if our Constitution’s separation of powers is to have any meaning, a clear line must be drawn where, even for laudable purposes, a president cannot undertake through non-enforcement to undo what Congress has enacted as the law. Though often frustrating, a president must work with Congress, not simply ignore it. Obama and Trump are odd companions on the wrong side of this issue.

Tom Campbell is a professor of law and of economics at Chapman University. He clerked on the U.S. Supreme Court and served five terms in Congress. He left the Republican Party in 2016 and is in the process of establishing a new political party in California, the Common Sense Party.

Eventually, if our Constitution’s separation of powers is to have any meaning, a clear line must be drawn where, even for laudable purposes, a president cannot undertake through non-enforcement to undo what Congress has enacted as the law.